tice. A finding by the trial court as to which is right, and an amendment accordingly, would be a rational and logical method rather than for this court to decide between the record kept by the clerk under the direction of the judge, the contents of which the judge is presumed to know, and a bill. of exceptions signed by the same judge. If, however, for the purposes of this case we regard the bill of exceptions as prevailing over the record proper as to what jurors returned the verdict, it must be taken that Charles H. Bingamon was among those impaneled and sworn and John Brautigam was one of the jurors who returned the verdict. If that were true and objection had been made when the jury returned into court and the verdict was presented it would have been fatal, but an objection of that character cannot be made for the first time in this court on a writ of error. In the case of Brewer & Hofmann Brewing Co. v. Hermann, 187 Ill. 40, an objection was, made that the jurors. were not sworn to try the case because among the names of jurors who signed and returned the verdict were certain names not contained in the panel as sworn. The court said that the question could not be raised in this court for the first time and it should have been called to the attention of the trial court, which was not done. That was a just and proper rule, and no person ought to be allowed to stand by and permit a verdict to be returned and then on a writ of error say that one of the jurors was not sworn to try the case. If a jury returning into court to deliver a verdict is not the same jury impaneled and sworn, it is the plain duty of any party to object to the return of the verdict by such a jury, and if he does not but chooses to speculate on the chance of a favorable verdict he should not be heard afterward to make the objection that a juror acted without being sworn. The judgment is affirmed. Judgment affirmed. (No. 12956.—Judgment affirmed.) THE BORAH Drainage District, Appellant, vs. Jefferson FARRIS et al. Appellees: Opinion filed December 17, 1919-Rehearing denied Feb. 5, 1920. DRAINAGE—when procedure under sections 60 and 61 of Levee act is unavailing. Where the Supreme Court has held, on appeal from a judgment and order of sale for a levee drainage assessment, that there is no order organizing the district, then as to the land owners appealing there is no district, and proceedings cannot be had under sections 60 and 61 of the Levee act to bring their lands into the district and have the previous assessments declared valid or new assessments made. APPEAL from the County Court of Wayne county; the Hon. EUGENE M. PEAVIER, Judge, presiding. THOMAS H. CREIGHTON, and KRAFT, KRAFT & ERSKINE, for appellant. RICHARD L. BOGGS, and WILLIAM T. BONHAM, for appellees. Mr. JUSTICE THOMPSON delivered the opinion of the court: This case has been before this court on four former occasions, (Borah Drainage District v. Ankenbrand, 260 Ill. 335, 277 id. 132, 279 id. 488, and People v. Bonham, 286 id. 286,) and reference is made to the opinions heretofore filed for a more complete statement of the case. The question at issue in this cause and now before us pertains to the sufficiency, in law, of a petition presented to the county court of Wayne county by the commissioners of Borah Drainage District under sections 60 and 61 of the Levee act. The petition, after setting out in considerable detail all the history of the Borah Drainage District, concludes as follows: "And your petitioners now further show that by virtue of said decisions and the orders of the Supreme Court of Illinois that the said proceedings for the organization of Borah Drainage District and the order of this court of May 4, 1914, establishing the same, are invalid as to the persons and lands hereinafter named and described, and that the assessments of damages and benefits heretofore made as to the lands hereinafter described are not now enforcible by reason thereof. [Here follow names of the persons interested and description of the lands involved.] Your petitioners now therefore make this their petition to this honorable court under sections 60 and 61 of said Levee act against the said owners of land above named, and for the purposes and benefits thereof said sections are now hereby made a part hereof as though fully set forth herein, and pray that the said lands herein above described may be made a part of Borah Drainage District, and that the organization thereof, with the boundaries established as aforesaid, may be made and declared valid as to each and all of said tracts of lands; that the assessments of benefits made as aforesaid shall not be lost to Borah Drainage District, but that the said assessments heretofore levied, assessed and made a lien upon said lands as aforesaid may be made and declared enforcible and valid against said several tracts of land, or that new assessments may be now made in favor of or against the said lands, all as the case may be, as shall seem meet to your honor, that equity, justice and the provisions of the Levee act shall require." To this petition appellees filed their answer, denying, among other things, that there is now, or ever has been, any Borah Drainage District organized. The court, after a consideration of the petition, the answer and the records and files in the cause, found that the petition was improper and insufficient, and that it showed on its face that the said commissioners were not entitled, in law, to the relief prayed for or to any relief, and entered an order dismissing the petition, from which order appellant prayed and perfected this appeal. This court held in People v. Bonham, supra, that there is no judgment declaring the Borah Drainage District organized into a drainage district, and that, so far as these owners and their lands are concerned, there is no Borah Drainage District. There being no district, none can be organized by the procedure here attempted under said sections 60 and 61. The county court properly dismissed the petition and denied the relief sought, and its judgment is therefore affirmed. Judgment affirmed. (No. 12888.-Judgment modified and affirmed.) THE GRAND TRUNK WESTERN RAILWAY COMPANY, Plaintiff in Error, vs. THE INDUSTRIAL COMMISSION et al.(MARIE HAMPLE et al. Defendants in Error.) Opinion filed December 17, 1919-Rehearing denied Feb. 4, 1920. 1. WORKMEN'S COMPENSATION-test as to whether employee was engaged in interstate commerce. Where the duties of an employee of an interstate carrier require him to engage in both intrastate and interstate commerce, the test for determining whether liability for his injury is under the Federal Employer's Liability act or the State Compensation act is whether at the time of his injury he was engaged in interstate transportation or in work so closely related to it as to be practically a part of it. 2. SAME what does not bring injury within Federal Employer's Liability act. The mere expectation that an employee who receives an injury would presently be called upon to perform a task in interstate commerce does not bring the injury within the Federal Employer's Liability act. 3. SAME when employer must prove that injured employee was engaged in interstate transportation. To relieve itself of liability under the State Compensation act for the unwitnessed death of an employee whose duties were not exclusively confined to interstate commerce, the employer must show that the work the employce was doing at the time of his death was interstate commerce. 4. CONSTITUTIONAL LAW-presumptions are in favor of validity of statute. All presumptions are in favor of the validity of a statute and all doubt is to be resolved in favor of the law, and neither the motive nor wisdom of the General Assembly is open to question by the courts. 5. SAME-legislature has power to make Compensation act applicable without election by employer. It is within the power of the legislature to make the Compensation act applicable to all the employments therein designated as extra-hazardous without election by the employers to come under the act, and its action in so doing does not deprive employers of their property without due process of law. 6. SAME Compensation act does not deny constitutional righ to jury trial. The right to a trial by jury is incidental to the right of action, and as the Compensation act takes away the previously existing right of action and the grounds of defense and merges the two in a statutory indemnity fixed and certain, the act does not deny the constitutional right to trial by jury. 7. SAME-Compensation act is not invalid in creating liability without fault. It was within the power of the legislature, in the exercise of the police power of the State, to provide in the Compensation act for a liability on the part of employers engaged in extra-hazardous occupations without regard to fault on the part of the employer or negligence on the part of the employee. 8. SAME Compensation act does not delegate judicial powers to Industrial Commission. The Compensation act is practically automatic in its working, and the powers thereby delegated to the Industrial Commission are administrative, merely, and not judicial. 9. SAME-restriction upon freedom of contract imposed by the Compensation act is authorized by police power. The restriction upon the freedom of contract imposed by the Compensation act is authorized by the police power of the State, and the act is not unconstitutional in that respect. 10. PRACTICE-judgment confirming award but erroneously ordering execution may be modified. A judgment of the circuit court confirming an award by the Industrial Commission but erroneously ordering execution may be modified in the Supreme Court by striking out such erroneous provision and may be affirmed as modified. DUNCAN, J., dissenting. WRIT OF ERROR to the Circuit Court of Cook county; the Hon. OSCAR M. TORRISON, Judge, presiding. Kretzinger, Kretzinger & SMITH, (L. L. SMITH, of counsel,) for plaintiff in error. JOHN L. HOPKINS, and A. G. ABBOTT, for defendants in error. |